Employers need to remember these five key rules for documenting and providing feedback on employee performance:

1. For at-will employees, there is no legal obligation for employers to provide three warnings to employees prior to a termination.

Some employers have the misconception that employees must be given three warnings prior to being terminated.  This is not the case, as long as the company has maintained the employee’s at-will status.

2. Get employee feedback during counseling.

Employees are more likely to ultimately accept critical performance reviews if their feedback is heard. This does not mean that the employer must agree with the employee’s feedback, but just that the employer is considering their feedback in the decision-making process and the employee is not being prejudged. A good example on how obtaining the employee’s feedback avoided a potentially embarrassing situation and harming a relationship with the employee was noted in an article by SHRM (“How to Create Bulletproof Documentation”). The article recalled a situation when a manager wanted to discipline an employee for being late to her new position in the company. But prior to issuing the discipline, the HR manager asked the manager to seek clarification from the employee about why she was late. The manager followed the advice, and it turned out that the employee’s tardiness was a result of employee providing training to the replacement at her prior position in the company.

3. Send confirming emails to avoid misunderstandings and to document conversations.

After having a conversation with an employee, it is recommended to follow-up with conversation with a confirming email.  The confirming email provides two benefits: it clearly sets forth what the manager’s criticism and expectation for how the employee must improve, as well as documents the date and what was said during the conversation.  Yes, managers are busy and this is hard to develop as a practice, but keep in mind that the confirming email can be short and to the point.  In addition, if the manager does not have time to send the email that day, while it is best to send the confirming email as soon as possible, it is still better sending the confirming email a couple of days after the conversation.

4. Avoid vague language like “bad attitude” or “failure to get along with other employees.”

One of the hardest issues as a litigator is defending a wrongful termination claim when the documentation provided to the employee contains vague criticisms of the employee’s performance. Managers should avoid at all costs performance reviews that the employee has a “bad attitude.” If litigation ensues, and the company is forced to defend its decision to terminate the employee, vague statements like this do not clearly establish the reasons for the termination. Instead, a creative plaintiff’s lawyer can spin this language as evidence to support their allegation that the reason was based on the employee’s complaint, race, gender or age. A good practice is to use concrete examples in the performance review, such as:

  • You were 25 minutes late today.
  • Your conduct towards your coworker was unacceptable today when you informed Mr. Jones that “it was not your job to help him and he should know how to do these tasks by now.” You are expected to assist others in all aspects of their job, and to the extent they need additional help, you need to provide assistance to ensure that the customer’s needs are met.
  • You did not provide adequate customer service last Tuesday when you ignored the customer’s request for help in retrieving a different size three times.

5. Employees do not have to sign performance reviews to make them “official.”

Another common misconception is that employees must sign performance reviews in order for the review to have any effect.  While it is a good practice to have employees sign performance reviews to avoid any disputes that they were never shown the performance review, it is no legal requirement to have the employee sign the document. Employees often object to signing documents criticizing their performance. There are two potential responses to this objection: 1) have the employee’s acknowledgment clearly state that the employee’s signature is only acknowledging receipt of the document, not agreeing with the content, or 2) if the employee simply refuses to sign, have the manager or a witness sign and date the document with a notation that the document was provided to the employee and he or she refused to sign.

Also remember that write-ups and documentation do not have to be on any “official” forms.  Managers sometimes feel that they must wait until they can officially document an employee’s performance on the company’s official form. However, managers need to be trained on how to document performance and it must be made clear to them that while the company’s forms are preferred, documentation can be done on many formats, such as: e-mail to oneself or to HR, the manager’s log, any paper available, or even electronically on any other company device. I personally like when managers send emails to themselves documenting conversations with employees. Given the data associated with e-mails, such as time and date created, e-mails are excellent documentation of a manager’s conversation with an employee about performance issues. Managers should also be reminded that they need to document verbal warnings in some manner – if the verbals are not documented, it is as if they never occurred.

Under California law, employers have a duty to investigate misconduct and take remedial action to prevent further discrimination or harassment from occurring in workplace. See Gov. Code section 12940 (j)(1)(k).  This Friday’s Five lists five action items employers should utilize when conducting workplace investigations:

1. Selecting the investigator

Employers should take time to train an in-house person who can conduct harassment investigations.  This person, usually someone from Human Resources (but it does not need to be) should have additional experience and training about how to investigate these claims.  First, the person needs to be able to conduct appropriate investigations to limit the liability to the company.  Second, the person’s experience and training will likely be closely examined, if not challenged by opposing counsel if the case develops into litigation.  Therefore, someone with experience and who is well credentialed is preferred.

Also, consideration should be given on whether an outside investigator is needed to conduct the investigation.  Employers may utilize someone internal in the company for investigations, but to the extent there is a conflict of interest (see below) or the need for a more experienced investigator, it would be a good practice to consider involving a professional outside investigator.

2. The investigation must be free of any appearance of influence or bias

The investigator must not have any personal involvement with any of the parties who are a part of the investigation.  To avoid any appearance of undue influence, the investigator must not be subject to any control or supervisory control from the alleged harasser.  This means that for smaller companies, or in cases where the owner or president of the company is alleged to have harassed someone, it is recommended that an outside third-party that is independent from the company be hired to conduct the investigation.

3. The investigation must ask the right questions

Employers must remember that they have a duty to investigate various types of misconduct in the workplace, not only claims of sexual harassment.  The various allegations must be approached differently and the types of questions will obviously differ for different types of claims.

In terms of investigating sexual harassment claims, the EEOC provides the following examples of questions to ask during an investigation:

Questions to Ask the Complainant:

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

Questions to Ask the Alleged Harasser:

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions to Ask Third Parties:

  • What did you see or hear?
  • When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you?
  • When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

4. The investigator must make credibility assessments

The EEOC again provides some guidance on the factors to use when determining which witnesses are more credible:

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Did the person seem to be telling the truth or lying?
  • Motive to falsify: Did the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

5. The investigation’s final determination and continual monitoring

After making credibility determinations and evaluating the facts, management of the company must make a determination about whether or not the misconduct occurred.  The parties should be informed of the determination.  Even if the employer determines that harassment or discrimination did not occur, the EEOC takes the position that the employer should take steps such as preventative training and continued monitoring.  Moreover, even though the underlying harassment may not have occurred, a supervisor could still be held liable for retaliating against the employee who filed the harassment complaint that was found not to have any support.  Therefore, it is important for employers to inform the parties involved of the outcome, unacceptable behavior as a result of the determination, and to ensure ongoing compliance with the company’s findings and legal obligations.

California law requires employers to provide certain documents to employees.  Here are five documents California employers should consider in developing an end of employment packet:

1. Notice to Employee as to Change in Relationship (required under California Unemployment Insurance Code 1089)

As the EDD explains:

Written notice must be given immediately to employees of their discharge, layoff, leave of absence, or change in employment status. This sample notice (PDF) meets the minimum requirements. You may wish to prepare a duplicate employee notice and keep a copy for your records. No written notice is required if it is a voluntary quit, promotion or demotion, change in work assignment or location (some changes in location require a WARN notice), or if work stopped due to a trade dispute.

2. For Your Benefit, California’s Program for the Unemployed (published by the EDD)

3. COBRA and Cal-COBRA notices (can be obtained from health insurance provider)

4. Health Insurance Premium (HIPP) Notice (for employers with 20 or more employees, the Department of Health Care Services requires this form)

5. Documenting reason for termination (not legally required, but good practice)

Employers should establish a protocol for documenting the reason for termination.  While this does not necessarily need to be provided to the employee being terminated, the documentation is critical in defending potential litigation.  Some considerations for documenting an employee termination could include the following:

  • Is there a company policy that was violated? This is policy in writing?  Has it been distributed to the employee, and has the employee signed an acknowledgment of the policy?
  • Who was involved in the termination decision?
  • Review reasons for termination, and have clear guidelines for seeking legal counsel to avoid any potential wrongful termination or discrimination claims.

Employers need to also review their obligations and forms that are required for their particular industry or situation.

On January 26, 2021, Los Angeles County extended the Los Angeles County COVID-19 Supplemental Paid Sick Leave Ordinance to continue “until two weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Board.”  The new ordinance also retroactively applies to businesses starting on January 1, 2021.  The new ordinance differs slightly from the prior ordinance that expired on December 31, 2020.  Here are five issues Los Angeles employers need to understand about the new Los Angeles County Supplemental Paid Sick Leave Ordinance that was passed on January 26, 2021:

1. Effective time period:

January 1, 2021 to “until two weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Board.”

2. Covered employers and employees:

Covered Employers: Effective January 1, 2021, the new ordinance applies to all employers in the unincorporated areas of Los Angeles County.  The prior ordinance, which was in place from March 31, 2020 to December 31, 2020, applied only to employer with 500 or more employees nationally.

Covered Employees: The new ordinance applies to employees who perform work within the unincorporated areas of the County.  Food sector workers, as defined in the Governor’s Executive Order N-51-20, were excluded from this from the original ordinance, but as of January 1, 2021, food sector employees are now covered under the new ordinance.  Employers may also exclude emergency responders or health care providers (as defined by the Ordinance) from being eligible for paid sick leave.

3. Covered reasons for leave:

Like the original ordinance, the amended ordinance requires that employers must provide paid sick leave to employees at the written request (including, but not limited to, email and text) of an employee if the employee cannot work because:

  1. A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee is subject to a federal, State, or local quarantine or isolation order related to COVID-19 (e.g., is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system);
  3. The employee needs to care for a family member who is subject to a federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
  4. The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or childcare provider ceases operations in response to a public health or other public official’s recommendation.

Employers may require a doctor’s note or other documentation confirming that the employee is entitled to sick leave under one of these qualifying reasons.  Note that this requirement differs from Los Angeles City’s prohibition on employers being able to require a doctor’s note under the LA City’s Supplemental Paid Sick Leave Ordinance.

4. Amount of paid sick leave:

Employees who work at least forty hours per week or is classified as a full-time employee is entitled to 80 hours of supplemental paid sick leave.  The amount of pay is calculated on the employee’s highest average two week pay during the period of January 1, 2020 to the effective date of the ordinance, which is January 1, 2021.

Employees who work less than 40 hours per week and is not classified as a full-time employee is entitled to paid sick leave calculated at the employee’s average two week pay over the period of January 1, 2020 to January 1. 2021.

An employee who has already exhausted their supplemental paid sick leave under the prior ordinance or the Families First Coronavirus Response Act (“FFCRA”) by December 31, 2020 is not eligible for any additional supplemental sick leave.

5. Cap on payments:

The amount of paid sick leave is capped at $511 per day and $5,110 in the aggregate.  Paid sick leave under the Ordinance is in addition to any paid sick leave available to employees under Labor Code 246.  Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

California employers must continue to monitor all leave obligations under federal, state, and local laws.  This area of the law is quickly evolving, and employers must consult a qualified attorney on navigating these issues.

Three days into his term, President Biden signed executive orders and set forth plans for how employers should respond to issues during the COVID-19 pandemic.  Here are five actions by President Biden this week that stand to have a major impact on employers across the U.S.:

1. Within two weeks of January 21, 2021, OSHA shall issue revised guidance to employers on workplace safety during the COVID-19 pandemic.

On January 21, 2021, President Biden signed the Executive Order on Protecting Worker Health and Safety.  The Executive Order directs OSHA to do the following:

  • OSHA must also consider whether any emergency temporary standards on COVID-19 are necessary, and if so, issue them by March 15, 2021. OSHA is to review standards regarding masks in the workplace.
  • Review OSHA enforcement efforts and review what changes can be made to better protect workers and ensure “equity in enforcement.”
  • Launch a national program focusing OSHA enforcement efforts for COVID-19 violations for the largest number of workers at serious risk.
  • Launch multilingual outreach campaign to inform workers of their rights under applicable law.

California employers are already dealing with the Cal/OSHA Emergency Temporary Standards which became effective on November 30, 2020, and I expect that OSHA may have similar provisions as contained in Cal/OSHA’s ETS.

2. Plan to establish a safe standards certification program.

The Biden administration also released a 200-page plan, National Strategy For The COVID-19 Response and Pandemic Preparedness.  One aspect of the plan worth noting is the development of a safe standards certification program for businesses, which would allow businesses to “self-certify” that they are following standards aligned with the OSHA guidance to be published soon as mentioned above.  Businesses would have a “placard to show their commitment to their communities” under the program.  The plan does not provide many details about this self-certification program and what it may mean for businesses.

3. Call for extended paid leave.

The Biden administration also proposes an “American Rescue Plan” which, among other items, calls for additional paid leave President Biden is calling for.  The plan calls for legislation to provide the following:

  • Extend the Families First Coronavirus Response Act (FFCRA) and “emergency paid leave measures” until September 30, 2021.
  • Eliminate the exemptions under the FFCRA for employers with more than 500 employees and less than 50 employees.
  • Provide expanded paid sick and family and medical leave. The plan calls for 14 weeks of paid sick and family and medical leave to “help parents with additional caregiving responsibilities when a child or loved one’s school or care center is closed; for people who have or are caring for people with COVID-19 symptoms, or who are quarantining due to exposure; and for people needing to take time to get the vaccine.”
  • Extend emergency paid leave to include federal workers.
  • Provide a maximum paid leave benefit of $1,400 per week for eligible workers. Employers with less than 500 workers could be reimbursed for the costs of this leave.

4. Call to increase the minimum wage to $15 per hour.

President Biden’s American Rescue Plan also calls for a federal $15 per hour minimum wage and an end to the tipped minimum wage and sub-minimum wage for people with disabilities.

5. Guidance and support for businesses to reopen.

President Biden’s National Strategy For The COVID-19 Response and Pandemic Preparedness also calls for help from the federal government to support small businesses with the costs PPE:

As the conditions of the pandemic continue to evolve and more Americans get vaccinated, the business community needs clear information from the federal government on what to expect and how to adapt their operations. Many businesses affected by the pandemic–particularly the smallest ones–need additional support to adjust their physical spaces and purchase PPE and supplies. The United States will immediately work to prioritize funds under the recent COVID relief package to the companies hardest hit by COVID-19 and in compliance with public health restrictions, ensuring that small businesses have the funds they need to operate safely.

On January 8, 2021, Cal/OSHA updated the Frequently Asked Questions pertaining to its COVID-19 Emergency Temporary Standards (ETS).  For some background on the ETS, see our prior posts here.  California employers need to continue to adjust their practices to ensure compliance with this updated guidance from Cal/OSHA.  The complete FAQs can be found here.  Below is a selection of some of the updated FAQs as they pertain to five issues that raise many questions for employers:

1. Enforcement and Employer’s Good Faith Efforts To Comply with the ETS

Question 10: How will Cal/OSHA enforce the ETS as employers implement the rule? 
A:All employers are expected to comply with all provisions of the ETS, and Cal/OSHA will enforce the ETS, taking into consideration an employer’s good faith efforts to comply.

In addition to consideration of an employer’s good faith effort to comply before issuing a citation, for the first two months the rules are in effect (i.e., through  February 1, 2021), Cal/OSHA will cite but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s Injury and Illness Prevention Program, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020. This brief period of relief from monetary penalties will allow Cal/OSHA and employers to focus on obtaining compliance, while ensuring workers still benefit from the protections in the ETS. This policy will not apply where an employer fails or refuses to abate a violation of the ETS Cal/OSHA has identified, or in the case of imminent hazards.

2. Impact of Vaccinations Received by Employees

Question 24: Once an employee is vaccinated, must the ETS still be followed for vaccinated persons?
A: For now, all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.

3. Testing Requirements and Determination of Outbreaks or Major Outbreaks

Question 30: Can employers send their employees to a free testing site for testing (e.g., run by their county) and is this considered to be “at no cost to employees?”
A: Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).

Question 45: How can an employer measure the 14- or 30-day period in which to look for positive cases to determine if there has been an outbreak or major outbreak?
A:
The employer should look to the testing date of the cases. Any cases for which the tests occurred within a 14-day period would be reviewed to see if the other criteria for an outbreak have been met.

4. When Employees May Return to Work

Question 49: What are the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?
A: Applying Executive Order N-84-20 and current CDPH quarantine guidance, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.”

5. Employer’s Obligation to Pay “Exclusion Pay”

Question 52: Does an employer have to “maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job” if the employee is unable to work because of his or her COVID-19 symptoms?
A: No, if an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits under section 3205(c)(10)(C). The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.

Question 53: How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?
A: An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days (see above for potential impact of EO N-84-20). If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. The employee, however, may be eligible for temporary disability or other benefits.

There is still some confusion regarding the new Cal/OSHA Emergency Temporary Standards (ETS) that became effective on November 30, 2020 (we have written about the ETS previously here).  Here are five critical questions employers must consider about the ETS and their impact on the workplace:

1. What new reporting obligations do employers have under the ETS?

  • Employers must notify their local health department immediately but no longer than 48 hours after the employer knows or should have known of three or more COVID-19 cases.
  • Cal/OSHA must be notified when a COVID-19-related serious illness (such as a COVID-19 illness requiring inpatient hospitalization) or death occurs.

2. What investigation obligations do employers have regarding COVID-19 cases in the workplace?

The ETS requires employers to:

  • Develop an effective procedure to investigate COVID-19 cases in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.
  • For positive cases at the place of employment, employers need to:
    • Determine the day and time the COVID-19 case was last present, and to the extent possible, the date of the positive tests and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any were experienced.
    • Determine who may have had a COVID-19 exposure and evaluate whether any employees need to be excluded from the workplace.
    • Give notice of the potential exposure to employees/independent contractors/other employers present at the workplace within one business day (employers must also comply with the written notice requirements of AB 685 as of January 1, 2021).
    • Offer testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.
    • Investigate if any workplace conditions contributed to the risk of COVID-19 exposure and what could have done to reduce this exposure.

3. What written plan must employers have to comply with the ETS?

To comply with the ETS, an employer must develop a written COVID-19 Prevention Program or ensure these elements are included in an existing Injury and Illness Prevention Program (IIPP).

The employer must implement the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures
  • Identify, evaluate and correct COVID-19 hazards
  • Physical distancing of at least six feet unless it is not possible
  • Use of face coverings
  • Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
  • Procedures to investigate and respond to COVID-19 cases in the workplace
  • Provide COVID-19 training to employees

4. How do employers calculate the rate of pay for employees who are entitled to continued earnings?

Over a month after the ETS when into effect, Cal/OSHA has not issued any guidance on how employers are to make this calculation.  As a reminder, the ETS require that employees who tests positive or have been exposed to COVID-19, are excluded from the workplace, and who are “otherwise able and available to work” must continue to have their “earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.”  Employers are permitted to apply their sick leave benefits towards this purpose and may consider benefit payments from public sources in making this calculation.  However, the calculation of an employee’s earnings can be difficult based on a number of factors.  For example, the calculation is particularly difficult for employees who work a variable schedule.  Hopefully, Cal/OSHA will be able to provide guidance on this requirement soon.

5. When must an employer provide COVID-19 testing to employees?

Employers must provide testing for employees when (1) the employee had a potential exposure in the workplace and (2) all employees at the “exposed workplace” during an outbreak (defined as 3 or more cases within a 14-day period).  During an “outbreak,” employees must be tested immediately, again one week later, and then administer continuous testing of employees who remain at the workplace at least once a week.

Happy New Year!  No doubt 2020 has been a challenging year for California employers.  There were many new COVID-related laws to deal with from whether certain companies could continue to operate, testing issues for employees, and the various Federal, state and local paid sick leave requirements.

This Friday’s Five focuses on the enormous amount of work put forth by our team at Zaller Law Group (ZLG) during 2020 in helping California employers deal with the new and ever-changing laws related to COVID-19, in addition to keeping informed about the usual California employment law developments.  2020 kept the attorneys and staff at the Firm on their toes, and the highlights below show how our lawyers and staff were able to step up and assist employers during this difficult year (and while working most of the time from their homes).

Here are five highlights on how Zaller Law Group was supporting California employers:

1. 94 Blog Posts

The California Employment Law Report was a primary resource ZLG used to provide updates about California employment law during the year.  The blog will continue be one of the first places new updates are first posted.  Readers can subscribe to the blog here.  https://www.californiaemploymentlawreport.com/subscribe/

2. 51 Podcast Episodes

Our podcast, Zaller Talk, is available on most podcast platforms, such as Spotify and iTunes.

My top two favorite episodes for 2020 were the interviews I had with Loraine Salazar, co-owner of Sal’s Mexican Restaurants, and Joseph Pitruzzelli, founder and owner of Wurstkuche.

3. 134 YouTube Videos

There were over 85,000 views of the Firm’s video content.  On YouTube, the watch time consisted of over 4,000 hours, and there were over 500 new subscribers to the channel in 2020: Employment Law Report – YouTube.

4. Over 35 webinars conducted

The attorneys at the Firm were outstanding in quickly preparing easy to understand summaries of developing issues throughout the year.  Some of the webinars were planned with less than 24 hours to deal with new developments for California employers.  The best way to be informed about any upcoming webinars is to subscribe to the blog here (subscribers to the blog are notified of webinars available to the public).

5. 8 employees of Zaller Law Group (our 9th is starting January 4 – but more on this later).

It is a testament to the dedication of the attorneys and staff at Zaller Law that this relatively small team could do so much during 2020 – especially considering that this work is in addition to the normal litigation obligations the team has in defending employers in court.

Wishing everyone the best this year, and we look forward to assisting California employers in successfully navigating California employment laws in 2021!

On December 1, new Cal/OSHA Emergency Temporary Standards (ETS) went into effect, creating a host of new COVID-19 obligations for employers. Included in the ETS regulations are specific testing procedures, training and prevention protocols, and recordkeeping and reporting requirements. The ETS regulations include several controversial provisions, including stringent 14-day exclusion requirements for asymptomatic close contacts and a mandate that, with limited exceptions, employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations. (On December 14, the Governor issued an Executive Order easing the 14-day exclusion mandate, such that most asymptomatic close contacts may return after 10 days.)

Predictably, the Cal/OSHA ETS regulations have now been challenged in court. On December 16, the National Retail Federation, National Federation of Independent Businesses, and three California employers filed suit in state court in San Francisco. The plaintiffs assert that “California employers have established rigorous and science-driven safety measures, often at great expense,” to make workplaces safe,” and that the Cal/OSHA ETS regulations violate California law and are unconstitutional.

The plaintiffs make several arguments, including:

  • The ETS regulations were adopted without adequate public notice or hearing in violation of the California Administrative Procedure Act;
  • By requiring employers to maintain earnings of excluded employees, the ETS regulations seek to regulate wages and paid leave in excess of Cal/OSHA’s jurisdiction;
  • Because the enhanced “outbreak” testing protocols are triggered by three cases in a 14-day period, regardless of whether the employer has 5 employees or 500 employees, the ETS regulations are arbitrary and capricious;
  • The exclusion and pay requirements pose a threat to the viability of smaller employers;
  • The ETS regulations were adopted contrary to internal staff findings that the regulations were unnecessary and unsupported by science; and
  • the ETS regulations deprive employers of property without just compensation or due process.

The complaint seeks a declaratory judgment invalidating sections 3205(c)(10) [requiring exclusion of employees while maintaining earnings], 3205(c)(3)(b)(4.) [requiring employers to offer testing during “working hours” for close contact employees after workplace exposure], 3205.1(b) [requiring weekly workplace testing after a workplace “outbreak”], 3205.2(b) [requiring enhanced testing after a “Major COVID-19 outbreak”], and 3205.3(g) [requiring testing related to employer-provided housing].

As of this post, a case management conference is set for May 19, 2021.  However, as the complaint also requests a temporary restraining order and preliminary injunction, expect the plaintiffs to fie a motion in the near future seeking to enjoin enforcement of the challenged provisions while the case proceeds. Employers should continue to comply with the ETS regulations for the time being.

As we approach 2021, it is a perfect time for companies to conduct a California employment law practices audit to ensure that policies are compliant, managers are properly trained, and the company is maintaining the required records for the necessary length of time.  Here are five areas to start with in conducting an audit and a few recommended questions for each topic:

1. Hiring Practices

  • Are applications seeking appropriate information?
    • Ensure compliance with state and local ban the box regulations.
  • Are new hires provided with required policies and notices?
  • Are new hires provided and acknowledge recommended policies?
    • For example: meal period waivers for shifts less than six hours
  • Are hiring managers trained about the correct questions to ask during the interview?
  • Does the company provide new hires (and existing employees) with arbitration agreements with class action waivers?

 2. Records

  • Are employee files maintained confidentially and for at least four years?
  • Are employee time records maintained for at least four years?
  • Are employee schedules maintained for at least four years?
  • Do the managers have set forms for the following:
    • Employee discipline and write-ups
    • Documenting employee tardiness
  • How is the employee documentation provided to Human Resources or the appropriate manager?
  • Who is involved in reviewing disability accommodation requests?
  • How are employee absences documented?

3. Wage and Hour Issues

  • Does the company have its workweeks and paydays established?
  • Are paydays within the applicable time limits after the pay period as required under the law?
  • Are employees provided with compliant itemized wage statements?
  • Are employees provided a writing setting out their accrued paid sick leave each pay period?
  • Are employees properly classified as exempt or nonexempt?
    • For exempt employees, review their duties and salary to ensure they meet the legal requirements to be an exempt employee.
  • Any workers classified as independent contractors, and if so, could they be considered employees under AB 5?
  • Are nonexempt employees properly compensated for all overtime worked?
  • Is off-the-clock work prohibited?
    • Policy in place?
    • Are managers trained about how to recognize off-the-clock work and what disciplinary actions to take if find employees working off-the-clock?
  • Does the company’s time keeping system round employee’s time?
    • If so, is the rounding policy compliant with the law?
  • Are meal and rest period policies set out in handbook and employees routinely reminded of policies?
    • Does the company pay “premium pay” for missed meal and rest breaks? If so, how is this documented on the employee pay stub?
    • Do employees record meal breaks?
    • Are managers trained on how to administer breaks and what actions to take if employees miss meal or rest breaks?
  • Is vacation properly documented, tracked, and is unused vacation paid out with the employee’s final paycheck?
  • Are all deductions from the employee’s pay check legally permitted? (use caution, very few deductions are permitted under CA law)
  • Are employees reimbursed for all business expenses, such as uniforms, work equipment, mileage for work, and for expenses incurred for working from home during COVID-19 (such as internet, cell phones, etc.)?

 4.End of Employment Issues

  • Are employees leaving the company provided their final wages, including payment for all accrued and unused vacation time?
  • Does the employer deduct any items from an employee’s final paycheck?
    • If so, are the deductions legally permitted?

5. Anti-harassment, discrimination and retaliation

  • Are supervisors provided with sexual harassment training every two years? (If employer has 50 or more employees, supervisors are legally required to have a two-hour harassment prevention training that complies with California law).
  • Are there steps in place to provide nonsupervisory employees with 1 hour sexual harassment prevention training by January 1, 2021 and once every 2 years thereafter? (required for employers with 5 or more employees)
  • Are supervisors and managers discussing the company’s open-door policy to employees at routine meetings with employees? Is this being documented?